State, Local Entities Taking Varied Approaches to Fighting COVID-19

The COVID-19 pandemic has changed daily life across the nation, forcing state and local governments to develop public protection measures on the fly.

In California, Cal/OSHA and many city and county health departments have grappled with the best approach to providing signage, better sanitation, and facial coverings.

For employers and citizens, this rush to provide guidance and regulation has generated a fluid compliance environment, especially challenging for businesses working in multiple jurisdictions.

The sampling below of state and local directives provides examples of regulatory approaches.

Injury/Illness Plan

Cal/OSHA Guidance for Employers’ Injury and Illness Protection Plans Regarding COVID-19

For businesses that are still operating (the essential industries), Cal/OSHA has issued industry-specific guidance for multiple industries—including child care, health care, grocers, and agriculture—and is expected to issue additional guidance related to other essential industries, including retailers, transportation and logistics, and construction in the coming weeks.

These “guidance” documents have come in the form of recommendations for employers to update their Injury and Illness Prevention Programs (IIPP) to include specific measures in response to COVID-19.

Although these guidance documents will add some costs to employers, Cal/OSHA has attempted to include stakeholders in discussions before issuing each set of guidance, and the California Chamber of Commerce has taken part in these discussions.

We are glad to see Cal/OSHA’s attempt to balance protection and feasibility in these extreme times when protective equipment is in short supply and businesses are struggling to keep their doors open.

Generally, the recommendations for essential industries have included:

• Employee training regarding COVID-19, how it spreads, and when to seek medical attention, as well as methods to prevent its spread, including frequent hand washing and social distancing.

• Establishing procedures to ensure additional cleaning of workplaces and social distancing in the workplace.

• Some structural changes to the workplace—such as the addition of face shields in grocery stores or providing for more social distancing space in facilities and team meetings.

Local Ordinances

Local Ordinances Regarding Facial Coverings, Signage, and Personal Protective Equipment

Local governments have moved aggressively—and the rapidly evolving patchwork poses a challenge for California’s business community, particularly for those workers or businesses who operate across multiple jurisdictions.

Some jurisdictions have required additional personal protective equipment (PPE), others have prohibited certain activities, and still others have put into place price controls.

Los Angeles’ April 7 order provides an example, although, again, there is no guarantee of uniformity among local orders. There, employers in some essential industries—including grocery stores, restaurants, hotels, taxis and others—are required to provide facial coverings (not N95 respirators) to their staff. Notably, the Los Angeles order also requires employers “permit their employees to wash their hands at least every 30 minutes,” and includes anti-price gouging provisions. Failure to comply risks misdemeanor penalties.

Other counties, including Ventura County, have created posting requirements. Ventura’s April 9 order required employers to draft a “Social Distancing Protocol” and post it within three days—by April 12. Ventura’s March 31 order attempts to limit even essential businesses such as grocery stores to selling only those goods that are “essential,” but no list of what qualifies as essential has been provided to guide businesses.

Focusing on PPE supplies, some governments have required disclosure of stockpiles. For example, Santa Clara County issued orders requiring that hospitals, businesses and individuals with stockpiles of PPE disclose them to county health officials.

A number of provisions place implicit requirements on businesses to police their customers. For example, the Los Angeles order requires customers to wear facial coverings in these businesses and permits businesses to exclude customers who refuse to do so—although businesses’ ability or interest in playing policeman against their customers is an open question.

Keep Eye on Local Government

These examples are by no means all-encompassing—hundreds of different city and county ordinances have been put out and new ones are coming out daily. The CalChamber highly recommends keeping a close eye on your local governments.

Guidance from Cal/OSHA can be found on its website at dir.ca.gov/dosh. The CalChamber website includes helpful links to county websites, but businesses should also carefully monitor their communities’ local governments.

Hopefully, along with a safe return to normal commerce, we will soon see uniformity and clarity in the requirements placed on the business community.

Staff Contact: Robert Moutrie